Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Friday, February 28, 2014

A link to this newsletter from the CPA firm of Israeloff, Trattner & Co., PC was of interest to me as a result of the work I am beginning to do in the area of no-fault claims and the issue of necessary medical treatment:

Friday, February 21, 2014

"DISSENT:I cannot agree with the majority opinion in this case. Contrary to the conclusion of the majority members of the Board, the credible evidence fails to establish that the claimant was, in fact, unable to handle the physical demands of the job or even that he quit for that reason. The claimant testified that he had no intention of quitting; rather, he took a day off and, coincidentally, on that same day he received a telephone call from a prospective employer for a job interview. He also testified that when the owner of the employment agency called the claimant to find out if he was planning to return to work, he decided, on the spur of the moment, to quit, Moreover, he only made the decision after the owner asked him several times if he would be returning. As the claimant had not planned on quitting until after he was contacted by another prospective employer, it cannot be concluded that he was unable to handle the physical demands of the job. Further, even if it is accepted that the job was causing the claimant to experience some physical discomfort, the record does not conclusively establish that he afforded the employer an opportunity to address his concerns. It is uncontested that the claimant did not complain to the owner of the employment agency about any back pain. While the claimant did testify that he asked a non-site supervisor about whether there were mats available on which he could stand, the claimant's testimony was inconsistent on whether he told her he needed the mats to alleviate back pain, or whether he just asked about the availability of mats.The majority has also found that the claimant had good cause to quit because he had not accepted the terms and conditions of employment, having worked only four days at the job. While there have been recent Board cases finding that a claimant has good cause to quit during a "trial period" (the length of which has not been defined), these cases appear to be an unwarranted expansion of an earlier, very limited, exception made for claimants who quit shortly after accepting employment in positions for which they were not suited by training or experience. As the courts have made clear, the terms and conditions of employment are accepted at hire, not after a short "trial period".In Matter of Strader (49 AD3d 1120 [3rd Dept 2008]), the claimant, an office manager,quit after learning that he would be paid his regular hourly wage for voluntary overtime hours, rather than time and a half. In finding that the claimant did not have good cause to quit, the court held that there was no change in the terms and conditions of his employment, given that there had been no discussion about the overtime rate at the time he was hired. In Matter of Moore (32 AD3d 1088 [3rd Dept 2006]), the claimant quit after a few weeks on the grounds that he could not afford the increase in his car insurance as a result of using his personal vehicle for the job. In finding that the claimant did not have good cause, the court wrote that "[a]t the time that he accepted the job, claimant knew that he was required to use his personal vehicle for deliveries and that there would be an increase in his automobile insurance premium [emphasis added]"; and concluded that the claimant quit because of his dissatisfaction with a term of his employment. In Matter of Matuszewski (24 AD3d 1153 [3rd Dept 2005]), involving a claimant who quit after six days, the court noted the employer's testimony that the claimant was aware of the job responsibilities at the time of hire. And in Matter of Conners (9 AD3d 703 [3rd Dept2004]) the court, in finding that the claimant - who quit after one month due to his dissatisfaction with making appearances in small claims court - did not have good cause to leave his employment, noted that the claimant had known at the time that he was hired that his duties would include making evening appearances. These cases make it clear that the terms and conditions are agreed upon at hire, and not at some later date. As the Conners court held: "As it is well established that once the terms of employment have been agreed upon, such terms cannot thereafter be invoked as valid grounds for quitting." Contrary to the majority's opinion, these cases are dispositive, given that the record in this case fails to establish that the claimant quit due to the physical demands of the job. As to the decision in Appeal Board No. 566789, referenced in the majority's opinion, it must be noted that although claimant quit due to the physical demands of the job, the dispositive factor was the change in terms and conditions of employment: The claimant in that case had been hired on the understanding that he would be performing oil changes but found that he was being given the more arduous task of changing tires.There is no contention in this case that the claimant's job duties changed between the time of hire and the date of his resignation.
The claimant testified that he was aware of the job duties at the time he started the job.Hence, he had, in fact, accepted the terms and conditions of his employment. His subsequent dissatisfaction with those terms and conditions - which is clear from his testimony

For these reasons, I would affirm the decision of the Administrative Law Judge.

Thursday, February 20, 2014

In this matter, note the majority and dissent - which will be posted tomorrow:

Mailed and Filed: NOVEMBER 20, 2013IN THE MATTER OF: Appeal Board No. 570626 A
"OPINION: The credible evidence establishes that the claimant voluntarily left his job after working approximately four days in his new position because he could not handle the physical demands of the job. We note that the claimant had complained to the employer's supervisor at the site about his pain and asked for a rubber mat which he had used during his prior work. However, the supervisor denied his request for an accommodation.Thus, the claimant took adequate steps to preserve his employment prior to separation.As the claimant had only worked in the position for approximately four days, he did not accept the terms and conditions of the job (See Appeal Board Nos. 566815, 566789,565066, 564435). The Board has held that an individual has good cause to leave a job when the job harms the individual's health (See Appeal Board No. 485031). Accordingly,we conclude that the claimant voluntarily left his position with good cause. To find otherwise would contravene our mandate to give a liberal construction to Labor Law §501, a remedial statute recognized by the Court as humanitarian or grounded on a humane public policy, to accomplish the Legislature's intended purpose (see, Labor Law§ 501; Matter of Machcinski, 277 AD 634). It follows, and we further conclude, that there is no overpayment of benefits.The dissent's reliance on Matter of Strader (49 AD3d 1120 [3rd Dept 2008]), Matter of Moore (32 AD3d 1088 [3rd Dept 2006]), Matter of Matuszewski (24 AD3d 1153 [3rd Dept2005]), and Matter of Conners (9 AD3d 703 [3rd Dept 2004]) is misplaced. Those cases do not involve claimants who left their jobs due to inability to handle the physical demands of the job, but for other reasons. Unlike those cases, in the case at hand, the claimant could not have known at the time of hire that the work would impair his health until after he began performing it. The facts of this case are similar to Appeal Board No.566789, a decision signed by the dissent. In that case, the claimant was found after a week of working, to have been unable to perform the tasks of his job as it was causing him back pain, and the claimant's decision to separate from employment was found to be with good cause and not disqualifying. Similarly, in this case the claimant did not anticipate how the duties of his new position would affect his back when he took the job and the impetus for his decision to leave was his physical condition.Although the dissent argues that there were other factors that prompted the claimant to quit, including the call from a prospective employer for a job interview, the Court has
found the existence of multiple reasons for dissatisfaction with employment not to be a bar to a finding of good cause. However, we are mindful of the importance to identify the"impetus" of the resignation when evaluating whether there was good cause for a claimant's voluntary separation of employment. (See Matter of Cottone, 2013 N.Y.App.Div. Lexis 5895 [3rd Dept 2013]). In the case at hand, the record clearly establishes that the impetus for the claimant's resignation was the inability to handle the physical demands of the job. We find that claimant's receipt of a call from a prospective employer and an offer of a job interview coincidental and unrelated to the claimant's real reason for quitting - the adverse affect the work had upon his health. Furthermore, contrary to the dissent's argument, our assessment of the record shows that the claimant credibly and consistently testified that he informed the supervisor of his back pain.In addition, the dissent would like to find disqualification based on the claimant's purported failure to contact the owner. The Board has never required that a claimant must always complain to the owner of a business before quitting. Rather, the Board examines whether a claimant has taken any steps to preserve employment, which is a factor weighed together with other factors in determining whether a claimant left employment for good cause. In the case at hand, the claimant complained to the employer's supervisor at the site about his condition and requested an accommodation.The claimant was not obliged to complain further up the chain. Furthermore, nothing in the record establishes that the claimant was aware that he was required to complain to the owner when his request for an accommodation was denied by management."

Friday, February 14, 2014

It is not unusual, though unwise, for a sole shareholder corporation to deduct personal expenses as etc. business expenses. Besides the tax issues, etc. that are raised, when the owner of a sole shareholder corporation is in litigation, such practices can be harmful.

Illustrative is a case that was brought to my attention on an email list. It is a matrimonial where the court imputed income to the owner and is cited as E.D. v J D. 2013 NY Slip Op 52204(U) (Decided on December 23, 2013, Supreme Court, Westchester County). Note the following:

"Moreover, Defendant was not credible with respect to the explanations he provided as to why certain expenditures of the Corporation constitute business expenses. For example, in 2010, Defendant paid each of his three sons, then ages 10, 15, and 19, $7,000.00 from the Corporation's coffers, and, in 2011, paid two sons $3,000.00 and the third $2,500.00, contending that they performed various jobs for the Corporation including modeling clothing, helping with videos, editing copy for advertising, and testing the gear manufactured by one of the Corporation's clients. Except for the checks paid to Defendant's sons and Defendant's testimony, no other [*5]evidence was submitted to support these activities.[FN5] Westenberger v. Westenberger, 23 AD3d 571, 571-72 (2d Dept. 2005)(court may impute income where reported income on tax return is suspect); F.M.C. v. F.A.C., 12 Misc 3d 1169A, 2006 NY Misc. LEXIS 1489, ***47 (Sup. Ct., Nassau Co. 2006)(where father paid personal expenses out of business and reported income on tax returns was suspect, court would impute income to father).

The Court also found that numerous other claimed business expenses of the Corporation actually were Defendant's personal expenditures. As noted above, his legal fees in this action have been paid by the Corporation. In addition, Defendant testified that he regularly charged restaurant meals with his children as a business expense to the Corporation, as well as monthly charges for the three children's cell phones, and the expense for use of Zip Cars, despite the fact that he used the cars to pick up and drop off his children. Defendant's claim that the transport of the parties' children was incidental to his business use of the Zip Cars was not credible; indeed, it appears that Defendant's business expenses were directly tailored to benefit his personal needs.

For example, in 2007, Defendant deducted travel expenses for a trip he took to Israel purportedly to meet with representatives of an Israeli clothing company, at the same time that his son's Bar Mitzvah was scheduled to take place there, and, in 2010, Defendant deducted expenses for a three week trip to Mount Everest, including costs for training to climb that mountain, purportedly because he was working on marketing for a company that sold mountaineering gear. Defendant's claim that "it was determined that he should go," was not plausible; instead, given his control of the Corporation, the Court finds that Defendant decided to go to Mount Everest and used corporate funds to pay for it. Notably, no receipts were produced to verify these "business" expenses nor evidence verifying the "business" nature of the trips taken.[FN6]

Moreover, even if such receipts had been provided by Defendant, the evidence shows that Defendant alone controlled the Corporation's travel decisions as well as all other expenditures and any such expenses reduced the amount of funds available to increase Defendant's salary had he wanted to increase his salary.

Moreover, Defendant testified that he lives and works out of his studio [*6]apartment, and that, since 2007, he has apportioned 75% of the rent for the apartment to the Corporation as an expense.

As the Court noted in its July Decision, the very items Defendant declared as corporate business expenses - travel, rent, phones, dinners - are expenditures that a court typically is mandated to consider in calculating child support to the extent that such business expenses reduce the personal expenditures of such party. DRL § 240 (1-b)(b)(5)(vi).

In light of Defendant's lack of credibility, his clear co-mingling of business expenditures with his own personal needs and the fact that he is the sole decision maker as to how much salary he earns from the Corporation, together with the precipitous drop in Defendant's reported income after 2007,[FN7] the year he formed the Corporation, this Court will impute income to the Defendant for the years 2008 through 2012. DRL § 240 1-b(b)(5(iv); Matter of Rubley v. Longworth, 35 AD3d 1129, 1130 (2006), app. denied 8 NY3d 811 (2007)(trial court may impute income based upon past employment experience, future earning capacity, and/or payment of personal expenses from business accounts); Kelly v. Bovee, 9 AD3d at 642; Brefka v. Dobies, 271 AD2d 876, 877, app. denied 95 NY2d 759 (2000). "

Thursday, February 13, 2014

This is from an email from MatLaw Systems, a CLE firm for seminars on matrimonial issues, promoting their upcoming seminar on Evidence (which I am attending).

It addresses an issue that I sometimes forget - the client may be right but how do I prove it:

"Q. Why Do Negotiators Need to Know the Rules of Evidence?

A. Because you must know what evidence is admissible to figure out what negotiating positions make the most sense!

Just ask yourself: How do you evaluate your cases and formulate your negotiating positions? What do you use as your touchstone?

Most attorneys decide reasonable settlement objectives by measuring them against the projected likely outcome that would occur if the case were tried. If trial outcome is the guidepost, you must be able to assess the evidence that would be presented if you went to trial.

Remember, in assessing how your claim will fare in court what matters is not what is but what you can prove and that depends upon the admissibility of your evidence and the evidence that will be offered by the other side. Thus, you must have a working knowledge of the rules of evidence just to determine the likely outcome in court.

Example

You represent a client who claims that a particular asset is his or her separate property, either in whole or in part. To assess the viability of that claim, it is essential to know:

What if any presumptions apply?

What is the corresponding burden of proof?

If you have documents available to meet the burden of proof, are they admissible? How will their admissibility be effected by:
The best evidence rule?
Authentication requirements?
Hearsay issues?

So, even if you never go to court you need to know these and many other essential principles of the law of evidence."

Wednesday, February 12, 2014

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

This document fragment was dated July 1, 1850 by Abraham Lincoln's White House secretaries, John Nicolay and John Hay, who collected many of his manuscripts after his death. The note in the Collected Works of Abraham Lincoln indicates that Lincoln could have written these observations several years later than 1850. It is not known, however, if Lincoln ever delivered this lecture."

Tuesday, February 11, 2014

"
Each year thousands of banks and other financial institutions report data about mortgages to the public, thanks to the Home Mortgage Disclosure Act, or “HMDA” for short. These public data are important because:

Help show whether lenders are serving the housing needs of their communities;

Give public officials information that helps them make decisions and policies; and

These points were made by the court about the proof needed to establish, prima facie, that a proposal to relocate to with
the subject children was in their best interest:

1. The petitioner Mother "failed to provide sufficient proof that the move would enhance the children's
lives economically."

2. "The mother also provided no evidence that the lives of the subject children
would be enhanced emotionally by the move. There was no testimony regarding how
the children felt about the proposed move, in terms of how they believed it
would affect their relationship with their father or any of their friends. In
fact, there was no evidence as to whether the subject children even desired to
move."

3. "The
mother failed to show that the relationship between the subject children and the
father could be preserved through suitable visitation arrangements, particularly
given her financial circumstances."

My view of this decision: the court is telling parents that this evidence is needed to establish a prima facie case but does not guarantee that the application will be granted.. Once a prima facie case is established this, the burden of proof shifts to the other parent who can present evidence to establish that the relocation is not in the best interests of the children.

Tuesday, February 4, 2014

Today I will be a volunteer lawyer for the day at Landlord/Tenant court in Hempstead. Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project (VLP). The Nassau County Bar Association partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community. Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters. I will be with The Landlord/Tenant Project's Attorney of the Day Program, which assists thousands of men, women and children in court to prevent homelessness.

Monday, February 3, 2014

"Multiple studies have shown that women bear the brunt of the social and economic burdens that come with divorce. The quickest route to poverty is to become a single mother. This is awful enough, but what I find so galling is that the right to divorce was meant to be a cornerstone of liberty for women. For centuries, divorce in the West was a male tool of control—a legislative chastity belt designed to ensure that a wife had one master, while a husband could enjoy many mistresses. It is as though, having denied women their cake for so long, the makers have no wish to see them enjoy it".

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/